Stonehealth Pty Ltd v ZAA Ventures Pty Ltd as Trustee for the ZAA Investment Trust

Stonehealth Pty Ltd and ZAA Ventures Pty Ltd as Trustee for the ZAA Investment Trust were parties to an appeal concerning the decision of the Australian Community Pharmacy Authority (the Authority) to recommend that an application for a new pharmacy not be approved. The dispute centred on the interpretation of the term "supermarket" under the National Health (Australian Community Pharmacy Authority Rules) Determination 2018 (Cth) and whether the primary judge erred in construing its meaning. ZAA had applied for approval to establish a new pharmacy near a proposed Coles supermarket, which was not trading on the day of the application. The Authority concluded that the application should not be approved because there was no supermarket trading within 500 metres of the proposed premises on the day the application was made.

The central legal issues revolved around the interpretation of the term "supermarket" in Item 130 of Part 2 of Schedule 1 of the Rules. ZAA argued that the Authority had misconstrued the term or had improperly imposed a requirement for a supermarket to be "trading" on the day an application is made. Stonehealth, which had made a competing application, contended that the Authority must be satisfied that on the day the application is made, there is within 500 metres, a retail store the primary business of which is the sale of specified products on that day. The primary judge held that the Authority had improperly construed the definition of "supermarket" by requiring the supermarket to be open for retail trade on the day the application was made, which was inconsistent with the grammatical meaning of the definition and the intended purpose of the legislation.

The court found that the primary judge's interpretation of the Authority's decision was correct. The Authority's finding that there was no supermarket trading within 500 metres on the day of the application was based on an erroneous construction of the term "supermarket". The court held that the Authority's decision was not authorised by the enactment, within the meaning of s 5(1)(d) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). Consequently, the appeal was allowed, the orders made on 25 August 2020 were set aside, the originating application filed in matter QUD 218 of 2020 was dismissed, and the first respondent was ordered to pay the appellant’s costs of the appeal.